The U.S. Supreme Court has agreed to hear the case of T-Mobile v. City of Roswell, Georgia, which could shape future zoning decisions where the state or local government denies a tower. Under scrutiny is a passage from the Telecommunications Act of 1996 that says a zoning denial “shall be in writing and supported by substantial evidence contained in a written record.”
T-Mobile claims that the City of Roswell denied its application for a tower without giving a written explanation stating the reasons why and, therefore, is in violation of the Telecom Act of 1996.
“The question presented is whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy this statutory ‘in writing’ requirement,” according to T-Mobile’s pleading.
There is a clear split of opinion in the federal courts on the issue. While four Circuit Courts have required a written explanation for the denial, two Circuit Courts do not, according to Bill Sill, partner, Wilkinson Barker Knauer.
“A decision by the Supreme Court that reverses the 11th Circuit, would hold local jurisdictions more accountable for their decisions by requiring the local jurisdiction to provide the rationale for its decision in writing,” he said. “On the other hand, if the Supreme Court affirmed the 11th Circuit’s approach, localities would have unchecked power to deny construction permits and could leave aggrieved tower companies and carriers without a meaningful ability to appeal a denial.” The Supreme Court will hear the case in the Fall and is not expected to issue a decision, at the earliest, until late this year.
The 11th Circuit Court U.S. Court of Appeals ruled that the city satisfied the “in writing” requirement even though the letter itself did not give reasons for the denial.
“The letter informed T-Mobile that it could obtain the minutes of the City Council’s hearing in which the request was denied, and those minutes recounted the reasons for the denial,” the court wrote in its decision. “T-Mobile also had access to the transcript of the hearing, which gave an even more detailed written account of the City Council’s decision.”
On Feb. 2, 2010, T-Mobile South applied to construct a 108-foot-tall cell tower on 2.8 acres of vacant property zoned single-family residential, using a monopine design. The City’s Planning and Zoning Division concluded that T-Mobile’s application met all ordinance requirements for the construction of a cell tower and recommended it with several conditions.
The City Council considered the application at a public hearing, which lasted more than two hours. The 108-page transcript includes opinions both in favor of and opposed to the tower, but provided no insight into the City Council’s thinking in denying the application, according to T-Mobile.
“No one ever identified which of the various concerns expressed at the meeting and in support of the motion [to deny the tower application] constituted the City’s official reasons for denying the permit,” T-Mobile wrote in its petition before the court.